I. Introduction

Over the last few years, there has been a considerable development in the area of medical
malpractice litigation in this country, a system which has been largely marked by its inordinate
delays, exorbitant expenses and little relief for the victims of fraudulent clinical treatment
procedures.

The English common law being the original basis for the law on medical negligence in India as
felt today, this development has been both inclusive as well as exclusive of parallel deliberations
in common law jurisdictions.

We have seen the emergence of certain principles of medical jurisprudence that are the product
of an increasing use of creative interpretation by judges and are, as such, specific to only the
Indian framework of negligence law. Only when these principles are read with the existing
legislations regulating the conduct of medical practitioners as well as the recent trends in medical
science, can a totality in health care evaluation be achieved.

The objective of this paper is to study the growing implications of malpractice litigation on the
evolution of health care reform in India and further examine the interdependency of the two in
the context of a landmark judgment that was delivered very recently, Dr. Balram Prasad v.
Doctor Kunal Saha $ Ors.1, where an eleven crore rupees compensation was awarded to the
claimant of the suit. This paper also attempts to argue, through a combination of medico-legal
interpretation and analysis, about the need for adopting equitable justice as the only suitable
yardstick for assessing patient care in this country.

The resources used in the performance of this study include only secondary resources in the form
of books, journals, Law Commission Reports, case laws, etc. Through the research conducted in
this study it has been found that the existing loopholes in our health care model can be
requisitely compensated if only we allow a comparative adoption of such policies and principles
as may be appropriate to the medical health climate in India.

Health care reform in India today stands at an intricate crossroad with the corresponding
developments in malpractice litigation whereby policy initiatives and judicial propositions grow
interdependently of one another. In this paper, we shall be discussing a recent judgment that
seeks to create a future roadmap for the delivery of health care services in India, namely, Dr.
Balram Prasad v. Doctor Kunal Saha $Ors., hereinafter referred to as the Anuradha Saha
judgment, as also the judgments delivered by the Trial Court, the National Commission and the
Calcutta High Court, respectively, that ultimately formed the basis for the final appeal which
went before the Supreme Court of India. The case involved an NRI patient, Mrs. Anuradha Saha,
who had come to India to visit her mother in Kolkata. While on her visit, Anuradha began
suffering from a skin disease which gave rise to a few rashes that appeared on her skin. On her
first visit to the doctor, she was diagnosed with inflammatory vasculitis and was not prescribed
any medicine, although it would later turn out that she had actually been suffering from Toxic
Epidermal Necrolysis (TEN), which is an extremely rare form of disease. Over a period of time,
the rashes on her skin started rapidly spreading to the other parts of her body and she was
thereafter put under a heavy dose of steroid medication. Her condition nevertheless continued to
deteriorate following which she was admitted at the AMRI hospital. Subsequent to her treatment
at AMRI where she could not be cured of her rashes, Anuradha was shifted to a hospital in
Mumbai called Breach Candy Hospital where she would ultimately succumb to her illness and
suffer a brutal death.

II. Revolutionizing the present evidential rule of procedure

One of the most notable observations of the Supreme Court of India in the Anuradha Saha
judgment is that, in matters of criminal justice, with respect to the victims of medical negligence,
a court will not be bound by the evidence of an expert as such evidence is only advisory in nature
and that the court must therefore derive its own conclusion. This observation marks a decisive
shift from the Bolam2 standard, which had remained the sole test for determining negligence
until now, to the Bolitho3 standard which is a much newer principle in comparison to the former.
While the Bolam test dictated that the evidence brought out in support of one’s claim of
negligent conduct on part of the doctor should have been attestable to a responsible body of
medical opinion, the Bolitho test requires the evidence to be susceptible to a process of logical
interpretation by the judges. However, this shift towards the acceptance of a new standard, for
determining negligence still fails to take into account the feasibility of production of expert
medical evidence in a court of law. This feasibility is in question because of the exorbitant
expenses that are usually incurred in the process of gathering such evidence as also the inevitable
bias that must be arising in the testimonies of physicians who may, for all purposes of our
presumption, belong to the same fraternity of doctors as the respondent doctor himself. Since the
initial diagnosis of Anuradha was that of inflammatory vasculitis, Dr. Mukherjee, one of the
treating doctors at AMRI, was the first to be examined as to how he had sought to treat the same
and, subsequently, the High Court accepted his mode of treatment on the basis of evidence
adduced by a single expert physician, in a complete ignorance of the protocols that were
otherwise clearly entrenched in the contemporary medical literature on inflammatory vasculitis
at the time. Vasculitis is a disease consisting of protean clinical manifestations4 and its origin can
only be concluded through an extensive examination of the symptoms. The disease may be
idiopathic5 i.e., a disease whose cause of growth is unknown, or may be associated with a
spectrum of condition such as drugs, infections, etc. Also, the existing treatment line for
vasculitis is highly disputed and is therefore expected to be established in different ways and
variations through further clinical research into the area. So, it seems apt to conclude here that
the testament in favour of Dr. Mukherjee’s chosen method of treating inflammatory vasculitis
stands verily unqualified in respect of the blatant absence that we see of any academic reference.